A unanimous three-judge panel of the N.C. Court of Appeals has upheld a state law giving the Senate the authority to provide “advice and consent” on Gov. Roy Cooper’s Cabinet appointments. The ruling deals a blow to the Democratic governor in his ongoing power struggle with the Republican-led General Assembly.
The ruling affirms a trial court’s March decision to uphold the Advice and Consent Amendment. That amendment was part of legislation state lawmakers approved in December 2016, shortly after Cooper unseated Republican incumbent Pat McCrory in the governor’s race.
“While a provision of the Constitution mandates separation of powers between the branches, … another provision also reserves to the Senate ‘the advice and consent’ of the Governor’s appointments of constitutional officers,” the Appeals Court opinion states. “If separation of powers does not prohibit or constrain the Senate from confirming officers created by the Constitution, separation of powers does not otherwise prohibit ‘advice and consent’ being applied to gubernatorial appointees over agencies the General Assembly created, and which agencies can be amended or repealed by statute.”
The opinion concludes with the following quotation from the 2001 N.C. Supreme Court case of Pope v. Easley: “The Constitution of North Carolina is not a grant of power; rather, the power remains with the people and is exercised through the General Assembly, which functions as the arm of the electorate.”
Each of Cooper’s Cabinet appointees has faced a Senate review during the course of this legal dispute. The Senate has approved each one. The Appeals Court opinion notes that the Senate has given Cooper no grounds to challenge the Advice and Consent Amendment in its application to a particular case.
The Advice and Consent Amendment represents just one of multiple legal fronts in the power struggle between Cooper and legislative leaders. Last week, a separate three-judge panel ruled against Cooper in his fight over a law merging state elections and ethics oversight boards.
Cooper could appeal this morning’s ruling. Since it is unanimous, the N.C. Supreme Court does not automatically have to agree to take the case.
Judges Rick Elmore, Donna Stroud, and John Tyson issued the unsigned opinion.